Westboro free-speech ruling has its limits

By Joan Biskupic and Kevin Johnson, USA TODAY

WASHINGTON  The Supreme Court's decision Wednesday for fundamentalist preacher Fred Phelps over a bereaved father reflects enduring First Amendment protection for even the most offensive speech on public issues.

Yet the decision made clear that such protests aren't allowed at all times and in all places.

The justices rejected, 8-1, an appeal from Albert Snyder, whose son, a Marine, was killed in Iraq and whose March 2006 funeral was protested by Phelps and six Westboro Baptist Church followers. They carried signs that included "Thank God for Dead Soldiers" and anti-gay slurs. Matthew Snyder was not gay.

Albert Snyder had won a $5 million verdict for emotional distress the group caused him. An appeals court then threw out the verdict on First Amendment free-speech grounds.

Chief Justice John Roberts affirmed the appeals court decision in an opinion for the high court, emphasizing that speech on public issues "cannot be restricted simply because it is upsetting or arouses contempt." He took pains to stress that the court was endorsing free speech and not necessarily the Westboro speakers.

"While these messages may fall short of refined social or political commentary," Roberts wrote, "the issues they highlight — the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the Catholic clergy — are matters of public import."

Roberts noted the jury in the Snyder case was told it could hold Westboro liable for the intentional infliction of emotional distress if the picketing was "outrageous." The chief justice said that test was "highly malleable." Quoting the 1988 case of Hustler Magazine v. Falwell, he said liability cannot be imposed on "the basis of jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression."

The 1988 case involved a Hustler magazine parody of the late Jerry Falwell, then a nationally known fundamentalist preacher, that suggested he lost his virginity to his mother in an outhouse. The court ruled that public figures seeking damages for the infliction of emotional distress must meet a high legal standard. That test requires proof that the statement was deliberately false or made with reckless disregard of its truth. (The court said the Hustler parody was not intended to assert the truth.)

In Justice Samuel Alito's dissenting statement Wednesday, he said the Snyder case should have been viewed differently because the father was not a public figure.

"Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," Alito wrote, adding that giving a family "a few hours of peace without harassment" would not undermine public debate.

The court majority made plain that states may regulate funeral protests in some situations. Roberts observed that since the 2006 Snyder funeral, the Maryland Legislature has enacted a law prohibiting picketing within 100 feet of a funeral. Roberts also noted that Westboro's picketing would have complied with that restriction.

The chief justice said demonstrations may be regulated as long as laws are neutral — that is, not aimed at any particular views — and narrowly crafted.

In recent years, Congress and 46 states have enacted laws to minimize picketing near cemeteries during a funeral, according to a brief filed at the court by Senate Majority Leader Harry Reid, D-Nev., Senate Minority Leader Mitch McConnell, R-Ky., and 40 other senators who sided with Snyder. They said state personal-injury laws, such as the Maryland one Snyder invoked to sue Phelps, supplement government picketing restrictions.

On Wednesday, Reid expressed disappointment with the decision and said in a statement, "Emboldened by this unfortunate ruling, the Phelps family has pledged to redouble its efforts to harass military families during their darkest hour. I call on faith leaders from all communities to stand with me to denounce hate speech, including the kind used by these protesters."

As Margie Phelps, who represented her father and the other congregants in court, vowed to step up protests and challenges to government regulations on picketing, some local officials said they might try to strengthen "buffer zone" laws.

Long Beach City Councilman Robert Garcia, who participated in a counterprotest against Westboro last year in California, said cities now have an "obligation" to consider new laws that establish safe zones separating protesters from their targets.

"I understand the Supreme Court decision," Garcia said, "but now, you have to think of the safety of everybody involved."

Ben Requena, who organized a counterprotest to Westboro's demonstration at last December's funeral for Elizabeth Edwards, said the ruling also could mobilize social media efforts against the church in new ways.

Requena created a Facebook page to generate discussion about Westboro's decision to demonstrate at the funeral for the estranged wife of former Democratic presidential candidate John Edwards.

On the day of the funeral, Requena said about 700 people turned up, overwhelming the small contingent from Westboro.

Margie Phelps said Westboro, too, is trying to build support through social networking.

"This ruling is going to draw so much attention to our message," she said. "There are going to be more demands for us to be there, from people tweeting and e-mailing us and asking us to come" to military funerals and other high-profile events.

Yet Requena said he believes Westboro opponents would prevail. He said, "I think cities and towns will come together to counter their efforts."

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